Citation Nr: 0708660 Decision Date: 03/23/07 Archive Date: 04/09/07 DOCKET NO. 04-26 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for right foot disability; diagnosed as residuals, fracture, third metatarsal, right foot, with residuals of surgery (hereinafter right foot disability). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Irene Zaki, Associate Counsel INTRODUCTION The veteran served in the reserves from February 1994 to June 2001. On September 8, 1996 the veteran was on inactive duty training (IDT). This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2003 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Atlanta, GA, wherein the RO denied service connection for right foot disability. FINDINGS OF FACT 1. In September 1996, the veteran stepped in a hole while taking a physical fitness training test during a period of IDT. 2. The competent evidence indicates that a right foot disability preexisted active service. 3. The medical evidence shows that the preexisting right foot disability was permanently worsened beyond its natural progression as a result of the injury sustained while on IDT in September 1996. CONCLUSION OF LAW The veteran's pre-existing right foot disability was aggravated during IDT. 38 U.S.C.A. §§ 101, 1110, 1131, 1153, 5103, 5103A, 5107 (West 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to notify and assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). In view of the Board's favorable disposition in this matter, the application of the VCAA is moot. Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection According to the law, service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2006). Service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing active duty for training, or granted for a disability resulting from an injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. § 101(24), 106, 1110, 1131; 38 C.F.R. § 3.6. "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Analysis In determining whether a condition is service connected, it is important to identify whether the claimed disability preexisted service. The Board notes that the presumptions of soundness and aggravation do not apply to this case. The advantages of evidentiary presumptions do not extend to those who claim service connection based on a period of active duty for training or inactive duty training. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on active duty for training and had not established any service-connected disabilities from that period). With respect to her periods of active duty for training and inactive duty training, the veteran is not entitled to the presumption of sound condition at entrance to service and the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service. 38 U.S.C.A. § 1111, 1153; 38 C.F.R. § 3.306, 3.307. Since the presumptions are not applicable, the analysis of in service incurrence and aggravation of a preexisting condition are based on a preponderance of the evidence standard. The evidence of record does not contain any medical records prior to 1996. A notation on a 1996 radiology examination indicates the injury is "probably due to an old trauma and /or necrosis." Although this evidence is not highly probative there is no medical evidence to the contrary, thus the facts of this case require a finding that the veteran's right foot disability preexisted service. As such, the appropriate inquiry is whether the right foot disability was aggravated during active service. In order to find aggravation, the evidence must show an increase in such preexisting disability that is not due to the natural progress of the disease. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. An increase in disability must consist of worsening of the enduring disability and not merely a temporary flare-up of symptoms associated with the condition causing the disability. Davis v. Principi, 276 F.3d 1341, 1344 (Fed. Cir. 2002); see Jensen v. Brown, 19 F.3d 1413, 1416 (Fed. Cir. 1994) (Court held that 38 U.S.C.A. § 1153 requires some increase in the severity of the preexisting condition causally related to military service). The appellant contends that she incurred her disability as a result of an injury she incurred while performing inactive duty training in September 1996. She reports that during a physical fitness training test on September 8, 1996 she stepped in a hole injuring her right foot. Her service medical records confirm a stress fracture during a 2 mile run that caused her to be sent for immediate treatment and then sent home. Additionally her medical records chronicle complaints of her right foot disability through September 2000. Contrasting the evidence of the injury in 1996 with a probable old injury notation, and resolving all reasonable doubt in the veteran's favor, it is just as likely as not her right foot disability was chronically aggravated by her service on inactive duty training. 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Having established an in-service aggravation of a preexisting condition, it is now necessary to substantiate a current condition. A May 2000 radiology examination reports the veteran has avascular necrosis of the head of the third metatarsal. The evidence of record does not contain any contrary findings, therefore the veteran is found to have a current right foot disability. In order to achieve service connection for an injury there must also be evidence of a nexus between the in service injury and the current condition. The veteran suffered a stress fracture of the right foot on September 8, 1996. The veteran's service medical records contain a sick slip issued on her behalf at the time of injury stating no running, jumping or marching. The veteran was thus sent home. The veteran was once again issued a sick slip due to pain of the right foot in April of 1997 and told not to run, jump, or march for 6 days. However, 5 days later the veteran was issued a sick slip for the following four weeks. This indicates she had not recovered sufficiently and, consequently, could not return to duty, in itself an indication of the permanency of the disability. Furthermore, the evidence shows that the veteran required surgery on the right foot subsequent to the in-service injury. Specifically, after six more visits regarding her third metatarsal deformity, the veteran underwent surgery on her right foot substantiated by a post op visit in August 1998. Subsequently the veteran still had four visits regarding her right foot disability, specifically for the third metatarsal and necrosis. Reviewing all the evidence and resolving all reasonable doubt in the veteran's favor, it is more probable than not that her right foot disability was related to her September 1996 injury. In conclusion, the veteran has met the requirements for service connection for right foot disability. The Board notes that in reaching this conclusion, the evidence is at least in equipoise, and the benefit of the doubt doctrine has been applied. See 38 USCA § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the benefit sought on appeal is allowed. ORDER Service connection for right foot disability is granted. ____________________________________________ J. E. DAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs